Further Mutual Legal Assistance Requests from the United States of America - 604/2019

August 18, 2019

Her Majesty's Government of Gibraltar can confirm that the Gibraltar Central Authority for matters relating to International Mutual Legal Assistance (namely, the Ministry for Justice) received a Supplemental Mutual Legal Assistance request from the US on 16th August 2019 providing further information in support of its application for the restraint of the departure from Gibraltar of the Grace 1 and its cargo of oil, in anticipation of forfeiture proceedings to be commenced in the United States.

The Gibraltar Central Authority is unable seek an Order of the Supreme Court of Gibraltar to provide the restraining assistance required by the United States of America.

The Central Authority's inability to seek the Orders requested is a result of the operation of European Union law and the differences in the sanctions regimes applicable to Iran in the EU and the US.

The EU sanctions regime against Iran – which is applicable in Gibraltar - is much narrower than that applicable in the US.

The Gibraltar Central Authority for Mutual Legal Assistance enjoys a close working relationship with the equivalent authorities around the globe, in particular with the authorities of the United Kingdom, the Member States of the European Union and the United States.

Notes to Editors:

Background to the decision of the Gibraltar Central Authority for matters related to international Mutual Legal Assistance

The Gibraltar Central Authority for matters relating to International Mutual Legal Assistance (namely, the Ministry for Justice) received a Mutual Legal Assistance request from the US on 14 August 2019, seeking the disclosure of information and evidence in relation to the Grace 1 and its cargo of oil.

On 15 August the Gibraltar Central Authority received a First Supplemental Request from the US seeking the restraint of the Grace 1 and its cargo as a preliminary step in forfeiture proceedings in the US.

On 15 August 2019, the Gibraltar Central Authority replied to the US stating that, based on the information available, it was unable to accede to the request. The principal reason for this was that the offences disclosed in the US MLA would not constitute offences in Gibraltar had they occurred in Gibraltar. Notably, at the heart of the US Request, were offences under the US International Emergency Economic Powers Act linked to US sanctions against Iran. There are no equivalent sanctions against Iran in Gibraltar, the UK or the rest of the EU.

On 16 August 2019, the US sent additional information in connection to the restraint request. In particular, the US disclosed to the Gibraltar CA various elements that indicated that the IRGC controlled the Grace 1 and its cargo.

EU Regulation 961/2012 (as last updated on 5 July 2019) sets out the current EU sanctions regime against Iran.

The Gibraltar Central Authority has considered these requests with great care in order to be able to assist the United States in every way possible.

EU law, however, does not help in facilitating Gibraltar giving the US Mutual Legal Assistance.

In these circumstances, although the additional information provided on 16 August 2019 does create a closer nexus with those elements of the EU sanctions regime against Iran that are still active, we the Central Authority do not consider that such a nexus is sufficient to establish that the offences set out in the US request come within the definition of criminal conduct for the purposes of Gibraltar laws.

Accordingly, by virtue of the operation of EU law, the Gibraltar CA is unable to provide the assistance requested.

It is to be noted that the IRGC is not a designated foreign terrorist organisation in Gibraltar, the UK or in the EU generally, unlike in the US.

The Request still remains, in the view of the Gibraltar Central Authority, intrinsically linked to the US sanctions regime against Iran. The EU sanctions regime on Iran is fundamentally different to that of the US.

Furthermore, although addressed principally at commercial operators, the Central Authority notes that EU Blocking Regulation 2271/96 (protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom) specifically prohibits compliance with certain US legislation, including the Iranian Transactions and Sanctions Regulations (“ITSR”). The ITSR forms an important part of the legal matrix for the US Request. This is a reflection of the very different positions and legal regimes in the US and the EU.